After getting a number of email requests for this testimony, I’ve posted it up for convenience at SSRN, although it is also available through the hearing page as well. I submitted along with it my earlier Weekly Standard article, Predators Over Pakistan. As I have said here earlier, however, this hearing on March 23 came just ahead of Legal Adviser Harold Koh’s March 25, 2010 ASIL speech. Dean Koh’s speech addressed many of the criticisms made of administration policy on drones, and I should add, in ways that I thought substantively correct as a matter of legal policy. I thought the Legal Adviser’s statement strong, clear, and substantively excellent. Overall, I was pleased with the form and direction of its legal framework (if you look at the second half of the Predators Over Pakistan article, the more legally oriented part, you will see that my analysis tracks certain parts of the Koh speech analysis fairly closely). I was also impressed with its directness – it was not filled with careful dodges and lawyerly hedges that would make it impossible to find a clear takeaway, quite the contrary.
There are many open questions, of course, and ways in which interpretations and legal judgments could go – but the statement on drones itself was impressively direct in what it chose to address. So I strongly recommend reading this testimony, if you plan to, with the Legal Adviser’s text to hand. (Below the fold is the SSRN abstract for my testimony.)
Other articles worth reading on the Koh speech? Shane Harris’s quick take at the Atlantic is a useful one, likewise Ari Shapiro’s take at NPR (including his sense of the audience reaction at the ASIL meeting, which I was not able to attend), and I will post links to some other articles, including Peter Finn’s upcoming Washington Post piece. In the academic blogosphere, reaction was not so enthused – although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, my other Opinio Juris colleague Kevin Jon Heller was not so enthused (although KJH was actually commenting on another part of the Koh address, on the ICC and the crime of aggression). Diane Marie Amann was also not enthused.
In reading the entire speech – which ran over an hour to a packed hotel ballroom – and not just the parts related to drones, I was struck by a general, and in my view deeply important and (especially by academics like me who have never worked in government) underappreciated, question of lawyerly method, sources, methods of interpretation and grounds of authority. Koh made this point by quoting from Walter Dellinger on his experience at OLC:
[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority…When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.
I think this is important as a question of method and authority in international law as expressed by the United States as its binding obligation. When the Legal Adviser’s office sat down to come to a view (and with, drawing on an earlier section of the speech, the extraordinarily difficult and complex task of coordinating with other agencies of government and their lawyers), in other words, it presumably looked to its own practices, opinions, internal conclusions and advice to the executive branch, and so on. Not to outside scholarship, or at least presumably not until well down the path of interpretive authority within the internal structure of interpretation and legitimate legal authorities within the context of US government lawyering.
Like most academics, particularly when dealing with an administration with a sizable number of lawyers who come from academic communities such as my own, I certainly want to believe that Everyone Who Is Anyone is reading … my stuff. But of course it’s not true and, more importantly, it shouldn’t be true. Not except as very, very tertiary. Why? Because authority in law is partly a question of the logic, compelling or not, of the ideas and argument expressed – but its legitimacy is also partly a question of its provenance, particularly in the law of a democratic government, in which the legitimate authority of law is partly about internal logical consistency but also partly about consent of the governed. Who said it also matters.
Abstract:
This document is written testimony submitted to the Subcommittee on National Security and Foreign Affairs, for a hearing under the general title of “Rise of the Drones: Unmanned Systems and the Future of War.” The hearing [March 23, 2010] covered military, strategic, technological, and economic issues related to unmanned aerial vehicles in military, intelligence, and civilian commercial use. This written testimony addresses certain international law and legal policy issues raised by the use of drones as a means of projecting force. It is primarily addressed to the question of the CIA campaign of drone attacks in Pakistan and beyond, rather than the use of drones as an alternative form of air support on active battlefields in, for example, Afghanistan.
The testimony defends the lawfulness of the CIA campaign of drone strikes in Pakistan and beyond, arguing that they are lawful under doctrines of self defense, and that this legal justification protects this activity even outside of their use by regular military on conventional battlefields. The testimony argues, however, that whatever legal issues are unique to drone warfare, the most important issue facing the United States over their use at this time is not drone technology as such, but instead whether, and on what grounds, their use is lawful by the civilian clandestine service, the CIA. Drone technology in effect forces onto the table serious discussion of the lawful and proper role of the CIA.
The President has tasked the CIA with the mission that it currently carries out in Pakistan – essentially, drone strikes against militants and suspected or known terrorists, but using the CIA rather than the military presumably in order to be able to preserve the formal denial that US military forces are operating inside Pakistan. The question that critics increasingly raise is whether this activity by the CIA is lawful, and in addition the standing questions about drone warfare – is it extrajudicial execution, are there obligations to seek to capture rather than kill, and others. The Obama administration has embraced the drone strategy – and in particular, it has embraced the CIA campaign because it is, as senior US leaders have said repeatedly, the only way to strike directly at the terrorists and their leadership and seek to deny them safe havens.
This testimony argues that the US government drone program through the CIA is lawful. But it notes sharply that the US government has conspicuously failed to offer a public rationale for the legality of the program – and that the program’s legitimacy is at risk of gradual erosion from the public perception that if the government will not defend its lawfulness, perhaps it is not. This testimony urges the administration and Congress directly to address this issue of vital legal policy, and specifically to address the situation of the CIA and its use of force. It briefly offers grounds of argument on which to do so, starting from the proposition of international law of self-defense as a category broader and separate from armed conflict.
(Important Note of March 26, 2010. This testimony was submitted and the subcommittee hearing held on March 23, 2010, just prior to a major address by Harold Koh, State Department Legal Adviser, to the American Society of International Law, on March 25, 2010. The Legal Adviser’s address carried a substantial discussion of drone warfare and targeted killing, offered as the “considered view” of the United States. Professor Anderson makes special note that the Legal Adviser addressed some of the core concerns of this testimony, and asks that this testimony be read in light of that speech a few days later. In particular, the Legal Adviser offered a clear and considered public legal rationale for the legality of drone strikes as carried out by the US government – one of the key criticisms that this testimony makes of the Obama administration’s legal approach to drone warfare. Professor Anderson welcomes the Legal Adviser’s statement as a very important step forward with respect to both the willingness of the US government to offer a public legal rationale as well as its general substantive content.)
EvilDave says:
Look, I know subcommittee meetings are very very boring but to call them “drone warfare” seems a bit harsh.
March 27, 2010, 3:11 pmMihai Martoiu Ticu says:
US Defense Secretary Robert Gates expressed concern Thursday over Iran’s aerial drone program, saying the weapons could fall into the hands of terrorists.
http://rawstory.com/news/afp/Gates_expresses_concern_over_Irania_03252010.htm
March 27, 2010, 3:24 pmMihai Martoiu Ticu says:
@Kenneth
The problem with your argument is that it begs the question.
This is a matter of life and death and those affected, those who die, might disagree with your argument. But what does the average American when she disagrees with another American about matters of life and death? They sue eachother. You know as well as I do that hte U.S. has the highest concentration of lowyers in the world.
Imagine that you strongly believe that John Doe raped your four-year-old daughter. You believe to have enough information to make it believable beyond reasonable doubt. You have seen it yourself, you have it on video footage from four different directions, from above and below. You have John’s DNA on your daughter, you have 10.000 witnesses and so forth. John denies. He might say that he didn’t do it, that your video is fake, or that he deed it for a greater good, or that you are just jealous on his wealth, superior intellect and moral. You tell John: “Ok, let’s go to a judge and let her decide who’s right.” Imagine that John replies: “I’m not going to allow a judge to settle the matter, because I know better then you.”
Your argument is like John’s. There is no international court where the alleged terrorists or alleged victims of targeted killings can sue U.S. U.S. is doing whatever it can to avoid the jurisdiction of the International Criminal Court. The U.S. opposed that individuals could have standing before the International Court of Justice. The U.S. opposed an International Court for Human Rights, despite serious attempts by Australia, Chile and other countries to bring it to life, despite serious proposals from renowned scholars and judges from the ICJ, like Louis B. Sohn, Cowles and Judge Lauterpacht. And an American national court is not likely to give the “victims” a hearing.
Thus whatever you say about the intentions and the legal justifications is just begging the question as long as U.S. refuses to give her “victims” a day in court.
March 27, 2010, 3:56 pmMnZ says:
Mihai, it seems like two responses are in order:
1) So what? Find me an International Court where the victims of international terrorism or wars can go to obtain justice. And by justice, I mean real justice…not the International “Law” version. (See point #2.)
2) The International “Law” is often only enforced via consent of the entity that has sovereignty over the accused. That is why despotic regimes seem to be so cooperative with International “Law.” They know that democratic countries will – in most circumstances – eventually abide by International “Law”, even when it does not suit the democratic country’s best interest because democratic countries have internal processes in place to enforce the International “Law.” On the other hand, despotic regimes realize they can abide by International “Law” for as long as it serves their interests and then flout it when it does not.
March 27, 2010, 4:49 pmSuperSkeptic says:
Mihai Martoiu Ticu,
If I may, I’ll add a third response:
3) what you see as a flaw is the entire intended benefit.
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March 28, 2010, 2:51 amMihai Martoiu Ticu says:
@ MnZ
== Find me an International Court where the victims of international terrorism==
This is a fallacy. If it was true that the victims of terrorism cannot sue anybody, it does not follow from that fact that you should be free to kill anybody in the world and deny them a court where they could challenge your version of the story.
Besides that, it seems to me that captured terrorists are dragged before courts. U.S. citizens have lots of legal backing for most of their claims. Think for instance that the victims of the Iranian revolution can sue for damages and are paid. Originally Carter has frozen some $12 billion Iranian assets for this and now it is a reserve of one billion that gets refilled whenever a damage is awarded.
Or read the newspapers: ‘The 9/11 families are suing not only United and American airlines and others in aviation, but also Osama bin Laden, Saudi royal princes, Arab banks, Muslim charities and the governments of Iraq, Iran, Sudan and Afghanistan.’
== democratic countries will — in most circumstances — eventually abide by International “Law”, even when it does not suit the democratic country’s best interest because democratic countries have internal processes in place to enforce the International “Law.”==
Could you provide me with some empirical evidence for this statement?
Anyway I have a nice quote for you:
‘In the United States, at least so far, there is a prevalent feeling among our governmental officials and the lawyers who work in government departments such as the Pentagon and the State Department that international law is only a tool to be used in the national interest, and not something that we should allow to give any advantage in any case to a militarily inferior nation. Our governmental and ex-governmental lawyers fear international law more than they use it; they fear its use by other nations against us, and they don’t use it too much themselves because they have other ways–withholding aid, using economic muscle, threatening the use of force–to get what they want.’ – D’Amato, Anthony. “Human Rights as Part of Customary International Law: A Plea for Change of Paradigms.”, Georgia Journal of International and Comparative Law 25, no. 1-2 (1996): 47-98.
D’Amato’s words seem to refute your assertion, therefore I expect some empirical evidence from you.
March 28, 2010, 5:09 ambuy supra skytop says:
US Defense Secretary Robert Gates expressed concern Thursday over Iran’s aerial drone program, saying the weapons could fall into the hands of terrorists.
March 28, 2010, 9:00 amMnZ says:
Mihai…my empirical evidence is the Signatories to the CEDAW which the US has been roundly criticized for not joining. The US did not join because it feared that it was not willing to live up to the requirements. Meanwhile, Pakistan, Saudi Arabia, and several other countries whose records on women’s rights is (ehem) somewhat lacking have ratified the treaty. So, the US is criticized in the International community for taking its obligations under International “Law” seriously while other countries who signed on to the CEDAW with no intention of complying are seen as somehow more morally superior for it.
This is International “Law”…no thank you.
March 28, 2010, 1:39 pmMihai Martoiu Ticu says:
@MnZ
For the sake of the argument let’s say that you interpreted well the situation and that you can generalize from one example. But why is that relevant to my argument?
What I asked in my argument is to imagine that I say that I am free to kill you, to take your property away, to abduct you, to torture you, to imprison you or to do whatever I want to you and that I am the only one entitled to decide whether I do it or not. Above that, if you strongly believed that I did one of those things to you or something else that we both consider a crime, I am the sole decider whether I actually did it, or whether it was legitimate to do it, legal, or it was necessary to break the law, or it would serve the common good better if I did what I did. I could say that I don’t care what you believe and I am not going to allow a judge to decide which one of us is right. So tell me, would you accept such an argument? And if you got the chance, wouldn’t you blow me up?
My argument was that in matters of life and death, or rights, when one party believes that the other one commits crimes against the first party, it is only a third, neutral party – like a judge – who can decide who’s right. And if the second party refuses to accept a judge, whatever the second party says is begging the question.
March 28, 2010, 2:00 pmMnZ says:
Mihai, let’s consider your example. You are doing all those horrible things to me. Then, we have the opportunity to sign an agreement between each other that states we will have a third party decide who is right. However, you have already signalled that you will not abide by any adverse decision of the judge while I will be bond by those decisions. My decision is difficult. I know that you will ignore the decisions against you. (Let’s assume the costs of disobedience are relatively low.) On the other hand, I will be bound by the decisions which could be adverse against me.
Even if I was the complete victim, I would not to sign because of the risk I run with the judge finding against me. In my opinion, these risks outweigh any psychological benefit I receive from being told I am right.
March 28, 2010, 7:03 pmMihai Martoiu Ticu says:
@MnZ
Thanks. Now consider the situation as it is in the World. A lot of people, including myself, the terrorists, the citizens of third world countries believe strongly that the United States commits crimes. For instance there was an article in the paper about a poll in Iraq and only 1 percent believed the invasion was to establish democracy there. Forty-three percent of the respondents said they believed that U.S. and British forces invaded primarily “to rob Iraq’s oil.”
Now imagine that you are a Pakistani mother watching your daughter playing in the backyard and suddenly she’s shredded to pieces by 500 kg of explosives. You look upwards and you see a drone with stars and stripes. Or your wedding party was just blown up to pieces. You turn on the TV and hear Obama saying that he’s got to do all those things and he gives you some argument about the self-defences or the law of armed conflict. Or you hear some argument that this serves the common good of the whole world. Or you hear some argument that you are just blind, a religious fanatic, brainwashed, or that you are just jealous on the money, power, geniality and the American superior intellect and moral.
Imagine that you don’t believe all those arguments and believe that the U.S. is committing crimes to rob your oil, for power and control. Where could you challenge the American argument?
From history you know that US repeatedly opposed giving individuals procedural status before international tribunals. You know that U.S. opposed an enforceable bill of rights, and an international court for human rights. You know that U.S. rejects ICC. You know that after the ICJ pronouncement in the Nicaragua vs U.S one could hear American officials saying that “we reserve to ourselves the power to determine whether the Court has jurisdiction over us in a particular case” and George Shultz denigrating “utopian, legalistic means like outside mediation, the United Nations, and the World Court, while ignoring the power element of the equation.”
I would say that this situation is exactly like my example in my previous reaction. One party is convinced to be the victim of crimes only for material gains and power, and the alleged perpetrator refuses to accept any form of judicial mediation, giving some arguments that the alleged victim is either stupid, fanatic, jealous or otherwise intellectually impaired.
Therefore it seems to me that this way the U.S. either has to exterminate the whole third world, or it could never stop terrorism. And the obvious solution is that U.S. does something to make itself bound by the verdicts of some international court and ideally to give individuals the right to sue U.S. and if the court says they have a point, the U.S. should listen to the court.
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